February 09, 2011

Gerken: Why Lobbying as the New Campaign Finance Reform

The following is Part 1 of a two-part guest blog post by Yale's Heather Gerken.

Much has been written about the future of campaign finance reform in the wake of Citizens United. Today I will talk about why lobbying may be the new campaign finance. In my next post, I'll post on one direction lobbying reform might take.

I believe Citizens United will prove to be a pivotal moment for campaign finance reform. That's not because the decision has unleashed the floodgates of corporate speech or because it overruled Austin (the arguments reformers typically offer). It's because, as I have written elsewhere, Citizens United seems to have cut back on the reasons that Congress can regulate campaign finance. By substantially narrowing the definition of corruption -- the core justification offered for most reform -- the Court substantially narrowed Congress's power to act. Lower courts have already taken the Court's cue and begun to invalidate other campaign-finance provisions on these grounds. If the courts continue along this path, it will be very hard to rebuild McCain-Feingold, let alone pass bigger, better reform in the future.

So where do we go from here? In the past, reformers have typically focused on taking money out of politics. Now that the Court has placed roadblocks along that path, pragmatic reformers need to move in new directions; they need to find ways to harness politics to fix politics. It may be time to acknowledge that money will inevitably be part of the system unless the Court radically changes course. Our goal, then, should be figuring out how to use its attractions to create the right kinds of incentives for politicians. The obvious and popular example of this strategy is matching rules, which convert a $20 donation into, say, $100 or $200. While campaign finance has typically tried to level down -- restricting the ability of the monied to influence politics -- we might instead try to level up by making small donations worth more. We would thus give politicians a reason to reach out to working-class and middle-class voters. Disclosure and disclaimer rules might similarly help us harness politics to fix politics by converting what is typically a campaign advantage -- having big business on your side -- into a potential liability.

If the future direction of reform involves channeling money in useful political directions rather than pulling it out of the system entirely, lobbying reform fits naturally with these efforts. Indeed, just as beige is the new black, lobbying may be the new campaign finance.

Lobbying has been neglected by most people who write in the field (including me). I believe that Richard Briffault is the only election law professor to have written in depth about the many connections between the two (though others, like Sam Issacharoff and Rick Hasen, have recently moved in this direction). The rest of us, however, have made a serious mistake in neglecting the relationship between lobbying and campaign finance. That’s because the two work in tandem with each other as interest groups seek political influence. As long as lobbying and campaign donations remain both substitutes and complements, we should not study one without studying the other. Both are different means for achieving a similar set of political ends, not isolated phenomena that fit neatly into different academic silos.

Just as the two fit together as a practical matter, they fit together as a theoretical one. That's not to say the problems are precisely the same, as Richard Briffault has pointed out. But campaign finance and lobbying share many important attributes. Both address the problem of political influence. Both involve legislative foxes guarding the regulatory henhouse. Both raise serious constitutional questions. And both require us to regulate shape shifters. As Michael Kang has argued, in politics we are rarely regulating stable legal entities. Instead, we are often trying to control a loose collection of interests that can take different forms as circumstances dictate. Each time the courts or legislatures try to regulate a particular type of political institution, political entrepreneurs find new outlets to channel their energies. Party donors become supporters of 527s, then 501c4s and c6s. Lobbyists deregister and become consultants. They are shapeshifters. We see it in campaign finance, and we see it in lobbying. If any regulatory area plays to our field's comparative strengths -- raising the same sort of puzzles we routinely study -- it's lobbying.

Several years ago, Richard Briffault suggested that the reason we don't study the two problems together is that the plausible solutions are quite different. As he noted, campaign finance reform has long had a strong egalitarian element to it, whereas lobbying reform focuses almost entirely on questions of disclosure and transparency. But Richard wrote that before Citizens United. It may well be that, by the time the Court is done with its work, his observation will no longer apply. I suspect that much of the future work on campaign finance will focus on disclosure and transparency simply out of necessity. These regulatory arenas will thus look even more alike than they do now. Indeed, as I'll argue in my next post, I think that we can build on what we've learned in the campaign finance arena to chart new paths on the lobbying front.